April 27, 2006

It was almost six years ago when Daniel LeBlanc and three of his Petitcodiac Riverkeeper colleagues put on their boots and went on a toxic expedition.

It was the summer of 2000 and their goal was to collect leachate samples from the old dump that sits, covered up, on the Moncton bank of the Petitcodiac River. They brought containers and took one-litre samples from different areas, including the pipe that used to dump leachate into Jonathan Creek, and random seepage points into the river.

It was not a pleasant excursion.

“We closed our noses,” said LeBlanc. “It was a stinky job, but someone had to do it.”

Almost six years later, that field trip to the former dump has paid off for the Petitcodiac Riverkeeper.

Moncton provincial court Judge Yvette Finn delivered a guilty verdict yesterday after hearing a trial against two defendants accused of polluting the river. Fredericton-based consulting firm Gemtec and majority owner and principal environment engineer Robert G. Lutes had pleaded not guilty to charges of violating the Fisheries Act, but Finn found they were responsible for allowing leachate – the liquid that oozes out of the dump – to enter the river and creek.

Gemtec was hired by the city and presented a plan to close the old municipal dump on the banks of the Petitcodiac River in 1994. The dump had been used from 1971 to 1992, for everything from household and commercial garbage to medical, animal and industrial waste.

“Thank God for the Fisheries Act and the Canadian justice system,” said a delighted LeBlanc after yesterday’s verdict. “I cannot imagine how we’d be able to advance the cause of protecting the Petitcodiac River without them.”

After LeBlanc and his colleagues collected the samples in 2000, they had them analyzed in a lab, determined they were toxic to fish and made a complaint to Environment Canada, which launched an investigation. In 2002, charges were laid against Gemtec, Lutes, the City of Moncton and Moncton’s commissioner of Engineering and Public Works at the time, Geoff Greenough.

They were all charged with two counts of unlawfully depositing a deleterious substance into water inhabited by fish in 2000 and 2001. The city pleaded guilty in September 2003 and was fined $35,000 and ordered to implement a remediation plan to stop the leachate from entering the river system. The charge against Greenough was withdrawn.

Gemtec and Lutes went to trial in front of Finn in October 2003. Crown prosecutor Paul Adams called 17 witnesses and had closed his case when defence lawyer Robert Kenny successfully argued to have the charges thrown out.

Two years later Adams successfully appealed that decision and a new trial was ordered. Finn presided over the continuation of the trial this past December, with final arguments made in February.

Kenny argued it would be impossible to contain 100 per cent of the leachate and said it was clearly going into the river before Gemtec became involved. He said the closure report for the old dump was a starting point for dealing with the leachate, not the all-inclusive solution.

And he said Gemtec stayed with the project for several years, filing monitoring reports to the federal and provincial governments. But he said no government official ever came to them and expressed unhappiness with the amount of leachate entering the water.

Adams accused the company of using “1950s environmental management” and said Gemtec just let the leachate flow into the river, where it would be diluted.

Finn sided with the prosecutor yesterday. She said Gemtec didn’t create this environmental mess, but it also didn’t take every step it could to prevent it.

The proposed plan had been sent to Louis LaPierre, the Université de Moncton’s chair of sustainable development, for review and he twice expressed concerns that it didn’t comply with the Fisheries Act. But Finn said Gemtec went ahead and recommended it to Moncton city council without properly looking into Lapierre’s concerns.

The judge said the option recommended to the city by Gemtec “provided no measures to contain and/or prevent the deposit of the toxic leachate into the adjacent Jonathan Creek and Petitcodiac River.” It worked under the assumption the river would dilute the leachate.

The judge said between 1995 and 2001, the defendants neither recommended nor implemented any reasonable measures to prevent toxic leachate from being deposited into the Petitcodiac River system. In 1998, in response to unsightly seeps coming from the dump, the defendants actually installed a 400-metre pipe to drain leachate directly into Jonathan Creek.

Finn said the defendants did not exercise due diligence.

“Evidence at trial established that the defendants either, at best, did not know, or at worst, were “wilfully blind” as to the requirements of s. 36(3) of the Fisheries Act.”

Sentencing was adjourned until the morning of June 19.

Lutes had no comment as he exited the courtroom, referring interview requests to his lawyer. But Kenny only said that he wanted to wait and “digest” the decision and deal with the sentencing aspect.

Adams also would not comment, saying it wasn’t appropriate with the sentencing pending. He did say the maximum fine for this violation of the Fisheries Act is $1 million, along with possible orders to fix the pollution problem.

LeBlanc said the city has developed a plan to stop leachate from exiting the dump and entering the water, but it hasn’t been implemented. He said it’s been held up at the provincial level because environmental approvals are required for the work.

A call to the city late yesterday afternoon could not confirm that.

LeBlanc says he thinks this verdict will be significant to the environmental movement.

“It certainly sends a signal across Canada that no one is above the law and that engineering firms are responsible when they give advice to clients, whether they’re private businesses or municipal governments.”